Plaintiffs' property sits near the intersection of North Marine Drive and
North Portland Road. The city and state condemned a portion of plaintiffs' property

as a right of way for the North Marine Drive extension. As a result, plaintiffs' property
was essentially divided in half. The portion north of North Marine Drive is not at issue
in this case. The southern parcel resembles a flag, which the parties further subdivide
and refer to as the "flag portion" and the "pole portion." On the northern part of the flag
portion, the city acquired a construction easement. In late 1995, plaintiffs discovered
petroleum hydrocarbon contamination along the western side of the flag portion. (See
map below.)

The city's project manager, Jeanne Caswell, explained in her affidavit that
the city discovered petroleum contamination on a portion of the right-of-way and
construction easement in 1992 before construction began. That contamination was
apparently removed by June 1992. Caswell stated that in each phase of construction,
excavation and fill work occurred. However, only during the first phase of construction
was the construction easement on the Graham property used for staging those activities.
Caswell explained in her deposition that material was, from time to time, stored in the
right-of-way and construction easement. That material consisted of: (1) material
excavated early in the project from the Graham property itself, including concrete and
asphalt; (2) riprap, rock, and dredge sand for completion of a revetment in 1992; and (3)
roadway fill and surcharge material, including dredge sand. She agreed that the sand for
the project, which was stored on the flag portion, was dredged from the Columbia River
Slough and was never tested for contaminants. In her affidavit, she stated that all
material was stored on either the right-of-way or the construction easement. However,
when asked in her deposition to describe the easement, she could not state with
specificity whether it covered the top half or only the top third of the flag portion. She
also admitted that, on one occasion in 1992, she saw excavated material stored south of
the construction easement; she then ordered the material removed. Caswell stated that
she recalled several incidents of public dumping on different areas of the Graham
property. In her affidavit, she explained that there were no barricades to the flag portion
during phase II and that the flag portion was only partially fenced during phase I. That
fencing did not completely cut off vehicle access to the property. Caswell also noticed
cars parked all over the flag portion during phase II.

In his deposition, Hatch explained that he used the construction easement
as a staging area for excavation work. There is no evidence in the record that Mocon, the
city, or the state directly used the Graham property. Hatch claimed that he did store some
excavated material, including concrete, asphalt and blue clay, and some approved
roadway, surcharge, and revetment material on the construction easement. However,
Hatch asserted that, when he concluded work on the project, all of the material was
removed, the flag portion was flat, and the flag portion was not filled to the rough
elevation of North Marine Drive. Caswell explained in her deposition that, as standard
conditions of the construction contract, all material had to be removed from the easement
and Hatch had to grade the flag portion flat before leaving the project. However, she had
no documentation of those conditions or that Hatch had complied with them. She also
stated that Hatch did in fact level the most northern part of the flag portion to about the
width of a bulldozer. Hatch completed its work on the project in August 1993, but Hatch
explained that the company stored some equipment on the pole portion between August
1993 and January 1994 in exchange for demolishing a building on the Graham property.

Hatch recalled a conversation with Leo Graham when Graham and
Graham's attorney visited the property in the fall of 1993. During that conversation,
Hatch remembered expressing an interest in placing fill on the flag portion. Hatch,
however, explained that he chose not to pursue that interest because of the conditions that
Graham placed on the endeavor. Graham's recollection was that Hatch called him in late
1993 or early 1994 and offered to fill the property, Graham agreed, and, when Graham
returned to the property in April 1994, it appeared to be filled. When Hatch returned to
the property in 1996, he agreed that piles of dirt appeared to fill the property. At the
same time, Hatch noticed that cars were parked all over the flag lot.

Plaintiffs offered three sets of photographs taken of the flag portion. The
first set was taken in 1992 and showed piles of material all along the western side of the
flag portion. That material included asphalt and concrete. It appears to corroborate
Caswell's recollection that material excavated from the Graham property was stored on
the flag portion, even south of the construction easement. Both Caswell and Hatch
claimed that the material was removed. Pictures taken in late July 1993, one month
before Hatch concluded his work on phase I, reveal that the flag portion contained piles
of different material along the western side. Pictures taken in October 1995 similarly
reveal piles of unknown material along the western side of the flag portion. The
placement of the piles of material in the 1993 pictures and in the 1995 pictures appear to
roughly correspond. Caswell could not identify the composition of the material in the
1993 and 1995 pictures, nor could she conclude that the material in the 1993 and 1995
pictures appeared to be the same, or that they appeared to be different.

Ward began phase II in February 1994. Ward's project superintendent,
Richard Phillips, recalled in his deposition that piles of material were already on the flag
portion before Ward arrived on the project. He explained that the condition of the flag
portion did not change during its involvement in the project. Caswell stated that the
construction easement was not used as a staging area for the second phase of
construction, and Phillips similarly asserted that neither Ward nor its subcontractors used
the construction easement or flag portion for storage of material or equipment. Phillips
also noted that the dredged sand used as fill for the construction project appeared to be
different from the piles of material pictured on the flag portion in 1993 and 1995.
However, he did not actually inspect the piles on the property. Caswell stated that Ward's
involvement with the Graham property involve two incidents: (1) in late 1994, Ward and
other contractors used the pole portion and eastern edge of the property, only, as a cut-
through for vehicles; (2) in April 1995, the city discovered that maintenance of a cement
truck on the property had led to the deposit of lime, which was subsequently removed.

The city filed a motion for summary judgment, arguing that there was no
evidence that "any defendants are responsible for the presence of [the] contamination and
there [was] significant evidence that the contamination came from other sources."
Defendants Hatch, Mocon, and Ward expressly joined the city's motion. The city further
argued that summary judgment should be granted in favor of the state on the same
grounds asserted by the city. The city attached two affidavits in support of its motion for
summary judgment, one from Caswell and one from Hatch. Plaintiffs objected to the
affidavits, arguing that they were not based on personal knowledge. The trial court
considered the testimony in Caswell's and Hatch's affidavits as pertaining to activities
sufficiently within their personal knowledge. The trial court granted the defendants'
motions for summary judgment, stating:

"It is my opinion that on the evidence at hand no objectively reasonable
juror could find any of the defendants responsible for the contamination.
There is no evidence that any of them did the dumping."

The trial court held that summary judgment was effective as to the state because "the
State of Oregon has potential liability only by way of the City's agency."

Plaintiffs make three assignments of error. Plaintiffs first assign error to
the trial court's receipt of Caswell's and Hatch's affidavits, arguing that neither was based
on personal knowledge. We agree that the affidavits were sufficiently based on personal
knowledge to be admissible and affirm the trial court's admission of them without further
discussion.

To recover on either the negligence or strict liability theory, plaintiffs must
produce sufficient evidence to make out a prima facie case that defendants, rather than a
third party, caused or allowed the contamination. Defendants' motions for summary
judgment sought to demonstrate that plaintiffs presented no evidence of causation by any
of the defendants. Defendants focus on the fact that the public had access to the property
at all times during construction and the fact that the property had a history of public
dumping. Because of those facts, defendants argue, it is mere speculation to assume that
the city or its contractors, rather than a third party, placed contaminated material on
plaintiffs' property, where, defendants argue, there is no evidence that defendants placed
or caused the contamination on plaintiffs' property. We must examine the evidence to
determine whether it supports an inference that the defendants were the ones that caused
the contamination. If such an inference can be drawn from the evidence, a disputed issue
of material fact exists for the jury to resolve.

Plaintiffs attempt to invoke a res ipsa loquitur theory to establish
defendants' liability. Res ipsa loquitur is a rule of evidence whereby circumstantial
evidence may be used to prove ultimate facts, including both negligence and causation if
" 'the accident which occurred * * * is of a kind which more probably than not would not
have occurred in the absence of negligence on the part of the defendant.' " McKee
Electric Co. v. Carson Oil Co., 301 Or 339, 353, 723 P2d 288 (1986) (quoting Watzig v.
Tobin, 292 Or 645, 649, 642 P2d 651 (1982)). For res ipsa loquitur to apply, plaintiffs
must show that the inference of negligence is attributable to a particular defendant. Fieux
v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637, 643, 978 P2d 429, rev den
329 Or 319 (1999). Establishing causation may be accomplished by a jury's rational
inference based either upon a showing of some specific instrumentality causing injury
that is within a defendant's responsibility or upon a showing that a defendant was
responsible for all reasonably probable causes of the accident. Id. at 643-44.

Plaintiffs have failed to establish that here. The uncontroverted evidence is
that the flag portion was accessible to the general public and that the property was subject
to public dumping; thus it cannot be said that defendants here were responsible for all
reasonably probable causes of contamination. Plaintiffs also have not identified that the
instrumentality of injury, the contaminated soil or contaminated material, was, in fact,
defendants', rather than a third party's, responsibility. Indeed, that disputed fact is the
very issue of this case.

Under both plaintiffs' direct negligence and strict liability theories,
plaintiffs seek to draw one of two major inferences regarding causation, that the
contamination occurred as a direct result of the construction of the road project or as a
result of an independent agreement by Hatch to fill plaintiffs' flag lot. We begin with the
undisputed facts. Before construction began on phase I, there were no piles of material
on the western edge of the flag portion and there was no known hydrocarbon
contamination in that area. By April 1996, after completion of both phases of
construction, piles of material occupied the western edge of the flag portion and
hydrocarbon contamination also existed on the western edge of the flag portion and
extended south of the city's construction easement on plaintiffs' property. (See map
above.) The contamination occurred in "fill" material that, in part, consisted of sand and
silt.

We turn to the rest of the record. Plaintiffs' theory is that the 1995 piles of
material represent the "fill material" that Belding described as containing the
hydrocarbon contamination. That theory can be supported by: Leo Graham's
representation that, by April 1994, the property was "filled"; Phillips's deposition that the
1995 photos represented the state of the property from February 1994 until June 1995;
and Hatch's deposition that the property appeared "filled" in 1996 after commencement
of the suit.

We next turn to Hatch and conclude that summary judgment was improper.
From the fact that Hatch, at one point, stored material in the contaminated area of the flag
portion and the fact that it regularly stored dredge sand on the property, one can infer that
Hatch placed dredge sand south of the construction easement, along the western edge of
the flag portion. Because the sand was never tested for contamination, one can infer that
the Columbia Slough provided sand contaminated with hydrocarbons. In addition, given
the rough correspondence between the 1993 and 1995 pictures, one can infer that Hatch
placed that contaminated sand on the property before August 1993. Alternatively, given
the record's indication that Hatch either removed or leveled the material pictured in 1993
and that Hatch inquired about placing fill on the property, one can infer that Hatch placed
contaminated material on the property sometime between August 1993 and when it
vacated the property in January 1994.

On that basis, we conclude that summary judgment was improperly granted
in favor of Hatch.(9) Because Hatch may have placed contaminated soil on plaintiffs'
property when he was acting as a subcontractor for Mocon, and because it otherwise
acted as an agent for the city and the state, those parties are potentially subject to
vicarious liability for Hatch's conduct; thus summary judgment was improperly granted
as to those defendants as well.(10) We therefore reverse summary judgment in favor of
those defendants and remand on the theory that those defendants negligently or, under
ORS 465.255(1)(d), by acts or omissions, caused contamination of plaintiffs' property.
We affirm summary judgment in favor of Ward.

4. ORS 465.255(1)(d) imposes strict liability for remedial action costs that are
attributable to or associated with a facility on "[a]ny person who, by any acts or
omissions, caused, contributed to or exacerbated the release * * *." That provision is
consistent with plaintiffs' pleading that "defendants caused the contaminated fill to be
placed on plaintiff's land, and/or caused the fill to become contaminated." However,
ORS 465.255 also imposes strict liability on "any owner or operator" for the same costs
under circumstances that would not require proof of actual causation of the release by a
particular defendant. Plaintiffs did not specifically allege that defendants were "owners
or operators" of plaintiffs' property, nor do they here argue that proof of actual causation
by a particular defendant is not required for the statutory claim. Therefore, we focus our
attention on proof of actual causation, by acts or omission, of contamination by a
particular defendant.

Under the negligence claim, plaintiffs specifically alleged that defendants
were negligent in placing or allowing contaminated fill to be placed on the property, in
causing or permitting the fill to become contaminated after placing the fill on the
property, in failing to test the fill material before placing it on plaintiffs' lot, or in failing
to remove the contaminated fill.

Also under the negligence claim, the complaint alleges that the fill dirt,
contamination, or contaminated fill dirt was placed on the plaintiffs' property "in or about
the last six months of 1994, or early in 1995." Defendants, however, do not limit their
arguments to that time period but defend against the possibility that defendants were
responsible for placing that material on plaintiffs' property at an earlier date. We
therefore are not compelled to limit our consideration of the record to those dates, where
we must consider the evidence in the record in the light most favorable to plaintiffs, and
in light of the trial procedure to allow the amendment of pleadings to conform to the
evidence presented. See ORCP 23 B (governing amendments of pleadings to conform to
the evidence).

"The judgment sought shall be rendered forthwith if the pleadings,
depositions, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. No genuine issue
as to a material fact exists if, based upon the record before the court viewed
in a manner most favorable to the adverse party, no objectively reasonable
juror could return a verdict for the adverse party on the matter that is the
subject of the motion for summary judgment."

Oregon Laws 1999, chapter 815, amended ORCP 47 C. Section one of the act
made only a few changes to the text quoted from the 1997 rule above. Significantly,
however, it added the following, in part:

"(3)(a) The court shall enter judgment for the moving party if:

"(3)(a)(i) The pleadings, depositions, affidavits and admissions on file,
viewed in a manner most favorable to the adverse party, do not contain
evidence that is adequate to support findings of the specific facts that are
necessary to establish an essential element of the adverse party's claim or
defense; and

"(3)(a)(ii) The adverse party would have the burden of proving that element
of the claim or defense at trial."

Section two of the act provides that: "The amendments to ORCP 47 C * * * apply to all
actions pending on or commenced after the effective date of this 1999 Act."

This case was pending before the Court of Appeals, not the circuit court, when the
Act went into effect. The parties do not argue that any evidentiary changes effected by
the amended version of ORCP 47 C should be applied in this case in the first instance on
appeal, and we decline to apply those amendments on our own motion. See Doe v.
American Red Cross, 325 Or 502, 910 P2d 364 (1996) (in affirming reversal of summary
judgment on the ground that the moving party had failed to demonstrate the absence of a
genuine issue of material fact, Supreme Court did not apply, on its own motion, the 1995
amendments to ORCP 47 C that applied to "all actions, whether commenced before, on
or after the effective date" of the amendments); cf. Jones v. General Motors Corp., 139
Or App 244, 264, 911 P2d 1243 (1996), aff'd on other grounds 325 Or 404, 939 P2d 608
(1997) (applying revised summary judgment standard on appeal would violate due
process); see also State v. Meyers

7. That reasoning dismisses the possibility that Ward caused the
contamination by negligently failing to test the fill material before placing it on plaintiffs'
property, negligently failing to remove the material, or by omitting to remove the
contamination. Thus, we do not separately examine the record with respect to those
allegations.

9. Again, because we find dispositive the disputed fact question regarding
Hatch's alleged dumping of contaminated materials on plaintiffs' property, we do not
separately address plaintiffs' other fact allegations in the complaint with respect to Hatch.